2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-16-2001

Cureton v. Natl Collegiate Athlet. Assoc.

Precedential or Non-Precedential:

Docket 00-1559

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Recommended Citation

"Cureton v. Natl Collegiate Athlet. Assoc." (2001). 2001 Decisions. Paper 106.

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Filed May 16, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-1559 

TAI KWAN CURETON; LEATRICE SHA W, 

each individually and on behalf 

of all others similarly situated; 

ALEXANDER WESBY; ANDREA GARDNER 

v. 

NATIONAL COLLEGIATE ATHLETIC ASSOCIA TION 

 Tai Kwan Cureton; Leatrice Shaw; 

 Alexander Wesby; Andrea Gardner , 

 Appellants 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 97-cv-00131) 

District Judge: Honorable Ronald L. Buckwalter 

Argued November 9, 2000 

Before: ROTH, MCKEE and STAPLETON, Cir cuit Judges 

(Opinion filed May 16, 2001) 

 Andre L. Dennis, Esquire (Argued) 

 Danielle Banks, Esquire 

 Stradley, Ronon, Steves & Young 

 2600 One Commerce Square 

 Philadelphia, PA 19103 
 Adele P. Kimmel, Esquire 

 Trial Lawyers for Public Justice, P.C. 

 1717 Massachusetts Avenue, 

 N.W., Suite 800 

 Washington, D.C. 20036 

 J. Richard Cohen, Esquire 

 Southern Poverty Law Center 

 400 Washington Avenue 

 Montgomery, AL 36104 

 Attorneys for Appellants 

 David P. Bruton, Esquire (Argued) 

 Michael W. McTigue, Jr., Esquir e 

 Drinker, Biddle & Reath 

 18th & Cherry Streets 

 One Logan Square 

 Philadelphia, PA 19103-6996 

 Elsa Kircher Cole 

 General Counsel 

 National Collegiate Athletic 

 Association 

 1802 Alonzo Watford Sr. Drive 

 Indianapolis, IN 46202 

 Attorneys for Appellees 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

This is a putative class action by African-American

student-athletes challenging the minimum standar dized 

test score requirement for fr eshman year varsity 

intercollegiate athletic participation. This suit began almost 

four years ago and has previously been befor e us on 

appeal. See Cureton v. National Collegiate Athletic Ass'n, 

198 F.3d 107 (3d Cir. 1999). In the instant appeal, we must 

determine whether the District Court abused its discretion 

in denying plaintiffs' motion to alter or amend summary 

judgment and for contemporaneous leave to file a second 

amended complaint. We conclude that the District Court 

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did not abuse its discretion, and for the r easons that follow 

we will affirm the judgment of the District Court. 

I. FACTS 

The National Collegiate Athletic Association (NCAA) is an 

unincorporated voluntary association of more that one 

thousand members, a majority of which are public and 

private four-year colleges and universities that conduct 

varsity intercollegiate athletic programs. The NCAA member 

colleges are divided into Divisions. This suit deals with an 

NCAA bylaw called Proposition 16, which af fects initial 

eligibility only in Division I.1 Proposition 16, codified at 

NCAA Bylaw 14.3, has two components which operate on a 

sliding scale: a minimum high school grade point average 

(GPA) in thirteen required cor e courses and a minimum 

standardized test score on the Scholastic Aptitude Test 

(SAT) or the ACT Assessment. 

Plaintiffs are African-American student-athletes who 

exceeded the NCAA minimum GPA requir ement for 

freshman year athletic participation but failed to achieve 

the minimum required score on the SA T as required by 

Proposition 16. They allege that, because of Pr oposition 16, 

they lost the opportunity to compete in Division I varsity 

intercollegiate athletics during their fr eshman year, were 

denied admission to Division I schools, were denied athletic 

scholarships, and/or were denied recruiting opportunities 

by Division I schools. 

Because the factual and procedural history of this case 

bears directly on our decision, we recite it in some detail. 

Plaintiffs began this action on January 8, 1997, alleging 

that the minimum standardized test scor e component of 

Proposition 16 violated Title VI r egulations because it had 

an unjustified disparate impact on African-American

student-athletes. As plaintiffs' counsel stated in a 

declaration filed with the District Court, counsel chose to 

pursue a disparate impact challenge to Proposition 16, 

rather than an intentional discrimination claim, because a 

_________________________________________________________________ 

1. Division I is comprised generally of the lar ger universities and 

colleges 

with the greater availability of athletic scholarship monies. 

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disparate impact claim had a less "demanding" standard of 

proof. On February 5, 1997, the NCAA moved to dismiss 

plaintiffs' complaint, contending, inter alia, that (1) there 

was no private right of action for unintentional 

discrimination under Title VI; (2) the NCAA was not a 

"program or activity" subject to T itle VI; and (3) the NCAA 

did not receive the federal funding necessary to subject it to 

Title VI. 

Plaintiffs responded to the NCAA's motion to dismiss and 

moved for partial summary judgment on the gr ounds that, 

as a matter of law, the NCAA was a covered pr ogram or 

activity subject to a Title VI action and was a recipient of 

federal financial assistance for purposes of T itle VI. The 

NCAA contends, and the District Court found, that as part 

of their opposition to the motion, plaintiffs demonstrated 

knowledge of several of the facts that plaintif fs would later 

allege were evidence of intentional discrimination.

Specifically, plaintiffs referr ed to criticism from the 

administrator of the SAT and from the NCAA's own studies 

which warned that the NCAA's use of standar dized test 

scores for freshman eligibility would have a disparate 

impact on African-American student-athletes. Despite the 

existence of this evidence, however, plaintif fs did not 

suggest that it demonstrated intentional discrimination. To 

the contrary, the District Court found that plaintif fs praised 

the NCAA's motives in adopting initial eligibility standards 

as "laudable." 

On October 9, 1997, the District Court denied the NCAA's 

motion to dismiss while granting in part and denying in 

part plaintiffs' motion for partial summary judgment. The 

court determined that there was a private right of action 

under Title VI for disparate impact2 and held that the NCAA 

is a "program or activity" within the meaning of Title VI. 

However, the court left open the question of whether the 

NCAA receives federal funds as a result of its relationship 

with the National Youth Sports Program (NYSP). 

_________________________________________________________________ 

2. The Supreme Court has recently held that there is no private right of 

action to enforce disparate impact regulations promulgated under Title 

VI. Alexander v. Sandoval, ___ U.S. ___ (2001). 

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On June 22, 1998, the United States Supreme Court 

issued its decision in Gebser v. Lago Vista Ind. Sch. Distr., 

524 U.S. 274 (1998). As a result, plaintif fs' counsel became 

aware that the Supreme Court had articulated a deliberate 

indifference standard, albeit in the Title IX context, to 

determine whether a recipient of federal funds could be 

liable for knowingly allowing discrimination to occur. 

Meanwhile, in response to the Supreme Court having 

granted certiorari in a Title VI case, the NCAA moved in 

September of 1998 to amend the District Court's October 9, 

1997, order and to certify for appeal the question of 

whether Title VI's implementing regulations permitted a 

private right of action. 

Plaintiffs acknowledge that they consider ed moving to 

amend their complaint to allege intentional discrimination 

at this point. However, because the District Court denied 

the NCAA's motion to certify the private right of action 

question for appeal, plaintiffs made a tactical decision not 

to move to amend their complaint. Plaintiffsfiled a motion 

for summary judgment on their disparate impact claim on 

October 6, 1998. That motion contained a footnote 

suggesting plaintiffs' belief that they could allege a 

purposeful discrimination claim in light of Gebser.3 

On November 13, 1998, plaintiffs moved to amend their 

complaint by adding two additional named parties. The 

NCAA filed a cross motion for summary judgment on 

November 18, 1998, and opposed plaintiffs' motions for 

summary judgment and for leave to add party plaintif fs. In 

support of its motion for summary judgment, the NCAA 

attached the affidavit of an NCAA official who opined that 

one of the valid educational objectives of Pr oposition 16 was 

closing the gap between black and white student-athlete 

graduation rates. 

By memorandum and order dated December 18, 1998, 

the District Court allowed the two additional named

plaintiffs to intervene pursuant to Fed.R.Civ.P. 24. The 

District Court's order granting the motion specifically stated 

_________________________________________________________________ 

3. With the exception of that footnote, plaintiffs did not advance an 

intentional discrimination claim until after their disparate impact claim 

had been rejected on appeal. 

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that "it bears noting that the time is near to when motions 

of this sort would affect the close of discovery and 

consequently, any additional similar requests will be looked 

on with disfavor." 

Subsequently, both parties filed supplemental 

submissions in support of summary judgment and 

participated in oral argument. On March 8, 1999, the 

District Court denied the NCAA's motion for summary

judgment and granted plaintiffs' motion for summary

judgment, declaring Proposition 16 unlawful under Title 

VI's implementing regulations and permanently enjoining 

application of Proposition 16. See Cur eton v. National 

Collegiate Athletic Ass'n, 37 F. Supp. 2d 687 (E.D.Pa. 

1999). The District Court concluded that the NCAA was an 

indirect recipient of federal funding due to its complete 

control over the NYSP Fund. Alternatively, the District 

Court determined that the NCAA was subject to Title VI 

coverage because member schools had ceded contr olling 

authority to it. 

Next, the District Court determined that the NCAA's

legitimate objective in adopting Proposition 16 was raising 

overall student-athlete graduation rates and r ejected the 

NCAA's alternative justification of closing the gap between 

black and white student-athlete graduation rates. The court 

held that the NCAA's second proffer ed objective, closing the 

gap between black and white student-athletes, was 

"unequivocally not the purpose behind" adoption of 

Proposition 16. Finally, the court deter mined that the use 

of the standardized test score for fr eshman eligibility had 

an unjustified disparate impact on African-American

student-athletes and that there were equally effective 

alternatives to the standardized test score component 

which could further the NCAA's objective of incr easing 

graduation rates of student-athletes. On Mar ch 16, 1999, 

the District Court clarified its injunction and enjoined the 

NCAA from denying eligibility based on the minimum 

standardized test component of Proposition 16. 

On December 22, 1999, we reversed the District Court's 

grant of summary judgment to plaintiffs and r emanded the 

case with directions to enter judgment for the NCAA. See 

Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999). Specifically, 

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we found that the Title VI regulations under which 

plaintiffs sued were program specific (i.e., specific to the 

NYSP) and therefore did not reach Pr oposition 16. In 

addition, we rejected the "controlling authority" argument 

and found that the NCAA was not a recipient of federal 

funds based on its relationship to its member institutions. 

On February 28, 2000, after the case was remanded to 

the District Court, plaintiffs filed a motion to alter or 

amend summary judgment and a motion for leave to amend 

their complaint under Federal Rules of Civil Pr ocedure 59(e) 

and 15(a). In their proposed amended complaint, plaintiffs 

allege that Proposition 16 has been adopted and used by 

the NCAA as an instrument of intentional discrimination 

against African-American student-athletes. On April 13, 

2000, the District Court denied the motion, finding it to be 

untimely, prejudicial to the NCAA, and futile. The District 

Court denied plaintiffs' request for r econsideration, and 

plaintiffs timely appealed. 

II. JURISDICTION AND STANDARD OF REVIEW 

The District Court exercised federal question jurisdiction 

pursuant to 28 U.S.C. S 1331. We have jurisdiction over the 

District Court's final order denying plaintif fs' motion 

pursuant to 28 U.S.C. S 1291. 

We review a district court's refusal to allow a plaintiff to 

amend his complaint pursuant to Fed.R.Civ.P. 15(a) for 

abuse of discretion. Adams v. Gould Inc. , 739 F.2d 858, 863 

(3d Cir. 1984) cert. denied, 469 U.S. 1122 (1985). Similarly, 

when a district court rejects a motion to alter or amend a 

judgment filed pursuant to Rule 59(e), we r eview for abuse 

of discretion, except over matters of law, which are subject 

to plenary review. Id. at 863-64. 

III. DISCUSSION 

Both a motion to amend a judgment and a motion for 

leave to amend a complaint are addressed to the sound 

discretion of the district court. Where a timely motion to 

amend judgment is filed under Rule 59(e), the Rule 15 and 

59 inquiries turn on the same factors. Id. ; Newark Branch, 

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NAACP v. Town of Harrison, 907 F.2d 1408, 1417 n.14 (3d 

Cir. 1990). A district court may deny leave to amend a 

complaint if a plaintiff 's delay in seeking amendment is 

undue, motivated by bad faith, or prejudicial to the 

opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). 

Moreover, the court may deny a r equest if the movant fails 

to provide a draft amended complaint, see Lake v. Arnold, 

232 F.3d 360, 374 (3d Cir. 2000), or may refuse to allow an 

amendment that fails to state a cause of action. Adams, 

739 F.2d at 864, citing Massarsky v. General Motors Corp., 

706 F.2d 111, 125 (3d Cir. 1983). 

The mere passage of time does not requir e that a motion 

to amend a complaint be denied on grounds of delay.

Adams, 739 F.2d at 868. In fact, delay alone is an 

insufficient ground to deny leave to amend. Cornell & Co., 

Inc. v. Occupational Safety & Health Review Comm'n. , 573 

F.2d 820, 823 (3d Cir. 1978). However , "at some point, the 

delay will become `undue,' placing an unwarranted burden 

on the court, or will become `prejudicial,' placing an unfair 

burden on the opposing party." Adams, 739 F.2d at 868. 

Delay may become undue when a movant has had pr evious 

opportunities to amend a complaint. See Lor enz v. CSX 

Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (three year lapse 

between filing of complaint and proposed amendment was 

"unreasonable" delay where plaintif f had "numerous

opportunities" to amend); see also Rolo v. City Investing Co. 

Liquidating Trust, 155 F.3d 644, 654-55 (3d Cir. 1998) 

(rejecting proposed second amended complaint where 

plaintiffs were repleading facts that could have been pled 

earlier). When a party delays making a motion to amend 

until after summary judgment has been granted to the 

adverse party, other courts have recognized that the 

interests in judicial economy and finality of litigation may 

become particularly compelling. See Diersen v. Chicago Car 

Exch., 110 F.3d 481, 489 (7th Cir . 1997); Humphreys v. 

Roche Biomed. Lab. Inc., 990 F.2d 1078, 1082 (8th Cir 

1993); Union Planters Nat'l Leasing Inc. v. W oods, 687 F.2d 

117, 121 (5th Cir. 1982); Dussouy v. Gulf Coast Inv. Corp., 

660 F.2d 594, 598 n.2 (5th Cir. 1981). Thus, while bearing 

in mind the liberal pleading philosophy of the federal rules, 

Adams, 739 F.2d at 864, the question of undue delay

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requires that we focus on the movant's r easons for not 

amending sooner. Id. at 868. 

Moreover, substantial or undue pr ejudice to the nonmoving party is a sufficient ground for denial of leave to 

amend. Lorenz, 1 F.3d at 1414. The issue of prejudice 

requires that we focus on the hardship to the defendants if 

the amendment were permitted. Adams , 739 F.2d at 868. 

Specifically, we have considered whether allowing an 

amendment would result in additional discovery, cost, and 

preparation to defend against new facts or new theories. 

Compare id. at 869 (finding no pr ejudice because no new 

facts or additional discovery were requir ed) with Rolo, 155 

F.3d at 655 (finding duration of case and substantial effort 

and expense in resolving underlying motion to dismiss 

could constitute undue delay or prejudice to defendants) 

and Cornell, 573 F.2d at 823-24 (finding significant 

prejudice because proposed amendment changed legal and 

factual basis of claim and prevented defendant from

presenting defense). 

Turning to the case before us, the District Court, when it 

denied plaintiffs' post-judgment motion to amend, cited 

four reasons why plaintiffs' delay was undue: (1) the motion 

was filed three years after the complaint wasfiled; (2) the 

factual information on which the proposed amendment

relied was known almost two-and-a-half years before

plaintiffs sought leave to amend;4 (3) judicial efficiency 

would be damaged by trying claims seriatim; and (4) the 

interest in the finality of the proceedings would be 

compromised by amendment. Furthermor e, the District 

Court examined plaintiffs' asserted reasons for the delay in 

seeking amendment and determined that no "r easonable 

explanation" existed to overlook the delay. The court 

concluded that the only real reason advanced by plaintiffs 

for the substantial lapse in time was plaintif fs' misplaced 

confidence in their original disparate impact theory. 

The court next concluded that the NCAA would be 

prejudiced if plaintiffs were allowed to amend the complaint 

_________________________________________________________________ 

4. In fact, the District Court found that the plaintiffs demonstrated 

knowledge of many of the facts supporting their intentional 

discrimination claim as early as July 1997. 

 9 
to add a claim of intentional discrimination. It determined 

that the new claim might require the court to revisit the 

certification of the class and that amendment would lead to 

further discovery requests and significant new preparation. 

The court concluded that "the proposed amendment would 

essentially force the NCAA to begin litigating this case again."5 

We cannot say that the District Court abused its 

considerable discretion in denying the post-judgment 

motion to amend. The court carefully analyzed plaintiffs' 

proffered reasons for delay, the prejudice to the NCAA, and 

the substance of the amended complaint. It concluded that 

the assertion of the claim was untimely and pr ejudicial to 

the NCAA. The District Court, which had considerable 

familiarity with the development of the factual and legal 

issues in this matter, concluded that the new claim

fundamentally altered the proceeding and could have been 

asserted earlier. We find no err or in the District Court's 

conclusions. 

Plaintiffs contend, however, that our decision in Adams 

warrants reversal of the District Court. W e disagree. In fact, 

a careful reading of Adams supports the District Court's 

decision to deny leave to amend. 

In Adams, the plaintiffs brought an ERISA breach of

fiduciary duty claim against the trustees of a pension plan. 

The defendants moved for summary judgment. In defending 

against this motion, plaintiffs advanced two legal theories. 

The District Court accepted plaintiffs' first theory and 

denied defendants' motion for summary judgment. The

District Court did not address the alter native theory raised 

by plaintiffs. The District Court then certified a question for 

appeal based on the first theory. 739 F.2d at 862. We 

reversed the District Court's denial of summary judgment 

and directed that judgment be entered in favor of 

defendants. Id. at 863. We specifically declined to address 

the alternative legal theory which plaintif fs again sought to 

_________________________________________________________________ 

5. The District Court also concluded that allowing plaintiffs to amend 

would be futile. Because the District Court's judgment can be affirmed 

on grounds of delay and prejudice, we expr ess no opinion on the validity 

of the intentional discrimination claim alleged in plaintiffs' proposed 

amended complaint. 

 10 
present. Id. at 863, 866 n.8. After r emand, plaintiffs 

"formally advanced the [alternative] theory," by moving to 

alter or amend the judgment, pursuant to Rule 59(e), and 

for leave of the District Court to file a second amended 

complaint, pursuant to Rule 15(a). Id. at 863. The District 

Court denied plaintiffs' motions. On the second appeal, we 

held that the District Court abused its discr etion in denying 

the motions to amend. 

Plaintiffs contend that the instant matter is 

indistinguishable from Adams. They focus on the District 

Court's denial of the NCAA's motion for summary 

judgment, our reversal with instructions to enter judgment 

for the NCAA, and the District Court's denial, on r emand, 

of plaintiffs' motion to amend. However , plaintiffs overlook 

significant factual and procedural dif ferences between 

Adams and the instant matter. 

Unlike the instant case, the alternative theory that the 

Adams plaintiffs ultimately pursued had been raised at 

earlier points in the litigation. "This contention was 

asserted earlier in the litigation in plaintif fs' briefs, but was 

not addressed either by the district court or by this court 

. . . ." Id. at 861. In Adams,"[w]e specifically limited our 

holding to the certified question, and declined to reach the 

issue now before us, although the plaintif fs tried to raise it 

at oral argument." Id. at 863. 

Thus, in contrast to the plaintiffs her e, the Adams 

plaintiffs proffered the alter native theory to both the district 

and appellate courts prior to moving to amend. Mor e 

importantly, unlike the instant case, the Adams plaintiffs 

had not cross-moved for summary judgment and thus had 

not themselves sought a merits determination on their 

claims. In contrast, although the plaintiffs here by their 

own admission had sufficient facts and legal authority to 

allege an intentional discrimination claim at least by 

September of 1998, rather than attempting to add that 

claim, they filed for judgment on the merits on their 

disparate impact claim. A month later, they moved to add 

party plaintiffs, and the district court gave them the 

opportunity to do so.6 The District Court heard oral 

_________________________________________________________________ 

6. While plaintiffs styled their motion a"Motion to Amend to Add PartyPlaintiffs and/or Alternative Motion to Intervene," the District Court 

determined that the additional parties would be recognized as 

intervenors pursuant to Rule 24. 

 11 
argument on the cross-motions for summary judgment and, 

after considering voluminous exhibits and the undisputed 

facts, resolved the legal issues and reached the merits of 

the disparate impact claim. See Cureton , 37 F. Supp. 2d 

687. We reversed the District Court's or der on appeal. In 

light of the fact that plaintiffs participated in 

comprehensive proceedings which resulted in summary

judgment for the NCAA, "the concerns offinality in 

litigation become more compelling [because] the litigant has 

had the benefit of a day in court, in some fashion, on the 

merits of his claim." Dussouy, 660 F .2d at 598 n.2. 

Moreover, the Adams defendants demonstrated no 

prejudice from the amendment. Here, the prejudice to the 

NCAA is significant. During the lengthy and compr ehensive 

proceedings below, the NCAA had defended against a 

disparate impact challenge to Proposition 16 and had no 

notice that the question of discriminatory intent was at 

issue. This is not a case where the question of 

discriminatory intent permeates the plaintif fs' original 

claim. See Coventry v. U.S. Steel Corp., 856 F.2d 514, 519 

(3d Cir. 1988) (finding little prejudice where defendant had 

notice of amended claim because additional issue 

permeated original claim); see also Adams , 739 F.2d at 869 

(finding no prejudice where plaintif fs proffered alternative 

theory before both district and appellate courts before 

moving to amend). On the contrary, to the extent that the 

NCAA's intent had been addressed in this case, it had been 

characterized by plaintiffs as "laudable" and by the District 

Court as "legitimate." Cureton, 37 F. Supp. 2d at 701-05. 

Thus, if amendment were permitted, the NCAA would be 

prejudiced by having to engage in burdensome new 

discovery and significant new trial preparation. 

In Adams, we recognized that these matters are 

committed to the District Court's sound discr etion. 739 

F.2d at 868. The refusal to grant leave without any

justification for the denial can be an abuse of discretion. 

See Foman, 371 U.S. at 182; Lake, 232 F .3d at 373.

However, "[i]t is certainly not inconceivable to us that 

instances could occur in which the failure to make a timely 

motion to amend a complaint would place an unwarranted 

burden upon a trial court, or be prejudicial to the party 

 12 
opposing the motion." Coventry, 856 F .2d at 520. In such 

circumstances, the obligation of the district court in its 

disposition of the motion is to articulate the pr ejudice 

caused by the delay and to balance those concer ns against 

the reasons for delay. Id. The District Court satisfied its 

obligation here. We find no reason to disturb its judgment. 

IV. CONCLUSION 

For the foregoing reasons, we conclude that the District 

Court did not abuse its discretion in denying plaintiffs' 

motion to alter or amend summary judgment and for 

contemporaneous leave to file a second amended complaint. 

We will affirm the judgment of the District Court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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